Jones v. State

Citation156 Ala. 175,47 So. 100
PartiesJONES v. STATE.
Decision Date04 June 1908
CourtSupreme Court of Alabama

Appeal from Criminal Court, Jefferson County; A. C. Howze, Judge.

Jackson Jones was convicted of living in adultery or fornication with a white woman, being himself a negro, and appeals. Reversed and remanded.

The facts are sufficiently set out in the opinion of the court. The general charge was requested by the defendant, and refused by the court.

Robert E. Smith and R. T. Shugart, for appellant.

Alex. M. Garber, Atty. Gen., for the State.

DENSON J.

The defendant, a negro man, and Ophelia Smith, a white woman, are jointly charged by the indictment in this case with the offense of living in adultery or fornication with each other. The indictment is based on section 5096 of the Criminal Code of 1896 (section 7421 of the Criminal Code of 1907), and charges a felony. On a demand for severance, it was granted and the man (appellant) was tried alone. The trial resulted in his conviction; hence this appeal.

With the exception of the racial feature, the constituent elements of the offense are the same as in ordinary cases of adultery and fornication. The voluntary sexual intercourse by the man and woman with each other "is not the offense, but an element or constituent of the offense, the statute renders indictable. As has been often explained, the statute is directed against a state or condition of cohabitation the parties intend to continue so long as they may choose, as distinguished from a single or occasional act of illicit sexual intercourse. This state or condition may well be assumed in a single day, if the parties so design, as any other state or condition may be so assumed. If for a single day they live together in adultery (or fornication) intending a continuance of the connection, the offense is committed, though the cohabitation may be broken off or interrupted from any cause whatever." Brown's Case 108 Ala. 18, 21, 18 So. 811, and cases there cited; Walker's Case, 104 Ala. 56, 16 So. 7; Wright's Case 108 Ala. 60, 18 So. 941.

The testimony shows that two police officers in the city of Birmingham, while making a "search" during a night in January last, in Seventh alley, on going to a small "one-room shack," found defendant's horse and buggy in front of it; the horse being hitched to a telegraph pole. The officers looked through a hole in the door of the "shack," and saw the defendant and Ophelia Smith in a bed together, with their arms around each other and lying on their sides, undressed. The officers knocked on the door and were in a few minutes admitted by the defendant. Upon going into the room, they found the woman under the bed, with only a skirt drawn around her. The question is: Was this sufficient evidence of the corpus delicti upon which to base the admission of a confession by the defendant? The evidence does not show how long the defendant and the woman had been in the house together, nor does it show directly that they had been engaged in an act of sexual intercourse; but we cannot doubt that it afforded a reasonable inference that sexual intercourse had been indulged in by them. While the decisions, as stated above, hold that the state or condition of cohabitation against which the statute is leveled may well be assumed in a single day, we do not apprehend that the court meant that it would require an entire day for the assumption. On the contrary, if the evidence should reasonably afford an inference that the man and woman resorted to the "shack" for the purpose of engaging in sexual intercourse at will during the night, and intended to continue to do so afterwards as long as they might choose, and that they did have sexual intercourse with each other, we think that would be sufficient evidence of the corpus delicti for the admission of the confession of the defendant. We do not doubt that the evidence reasonably afforded the inference mentioned. Hall v. State, 53 Ala. 463; Smith's Case, 86 Ala. 64, 6 So. 71, 11 Am. St. Rep. 17; McAlpine's Case, 117 Ala. 93, 103, 23 So. 130.

The next question is whether the court committed error in allowing the witness by whom the confession of the defendant was proved to testify, over the objection of the defendant that the statement involving the confession was voluntarily made by the defendant. Whether or not a confession has been voluntarily made is a question which must be determined by the court (Bradford's Case, 104 Ala. 68, 16 So. 107, 53 Am. St. Rep. 24; 5 Mayfield's Dig. p. 184, § 12), and it requires no argument or citation of authority to show that to allow a...

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18 cases
  • Pruitt v. State
    • United States
    • Mississippi Supreme Court
    • 7 Marzo 1932
    ... ... were "summoned and returned as such," and that they ... were "duly organized at a term of court then in ... session," but this indictment does not show these ... Corillo ... v. State, 81 Tex. Cr. 636, 197 S.W. 998; State v ... Jones, 9 N.J.L. 357, 17 Am. Dec. 483 ... The ... indictment must set out the style of the case. The style of ... the case is not set out in the case at bar ... Holt v ... State, 47 Ark. 196, 1 S.W. 61; Greeson v. State, 6 ... Miss. 33; State v. Blakeley, 83 Mo. 359; ... ...
  • Deloney v. State
    • United States
    • Alabama Supreme Court
    • 26 Mayo 1932
    ... ... conformity to law and Supreme Court Rule 26 (Code 1923, vol ... 4, p. 887) ... The ... indictment is in Code form and is sufficient. Section 4556, ... form 76, Code 1923; Jinright v. State, 220 Ala. 268, ... 125 So. 606; Jones v. State, 136 Ala. 118, 123, 34 ... So. 236; Elam v. State, 25 Ala. 53; Boon v ... State, 69 Ala. 226; Walker v. State, 150 Ala ... 88, 43 So. 188; Noles v. State, 24 Ala. 672; ... Sanders v. State, 2 Ala. App. 13, 56 So. 69; ... Sullivan v. State, 23 Ala. App. 464, 465, 127 So ... ...
  • Scott v. State
    • United States
    • Alabama Supreme Court
    • 17 Abril 1947
    ... ... accused heard and understood the accusation, and that he ... remained silent in circumstances which ' naturally called ... for a reply' and the party to be affected by it must be ... in a situation ' in which he would probably respond to ... it.' Jones v. State, 156 Ala. 175, 176, 180, 47 ... So. 100, 102; Rowlan v. State, 14 Ala.App. 17, 70 ... So. 953; Raymond v. State, 154 Ala. 1, 54 So. 895; ... Underhill's Criminal Evidence, 4th Ed., §§ 259, 260 ... The ... defendant having been warned by 'the law' that he did ... not have ... ...
  • Wilson v. State
    • United States
    • Alabama Court of Appeals
    • 10 Junio 1924
    ... ... which was invasive of the province of the jury and an opinion ... or conclusion of the witness. We do not so conclude, and are ... of the opinion that no error was committed by the court in ... this ruling, and in other rulings of similar import upon this ... line of inquiry. Jones v. State, 156 Ala. 175, 179, ... 47 So. 100, 102. In the Jones Case, Justice Denson, for the ... court, said: ... "The state's witness testified that 'Ophelia ... Smith looked like a white woman- was a white ... woman.' The court committed no error in overruling ... the motion to exclude the ... ...
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1 books & journal articles
  • The central mistake of sex discrimination law: the disaggregation of sex from gender.
    • United States
    • University of Pennsylvania Law Review Vol. 144 No. 1, November 1995
    • 1 Noviembre 1995
    ...Bodies, supra note 211, at 191. (238) Eva Saks made a similar observation about race and phenotype when she discussed Jones v. State, 47 So. 100 (Ala. 1908), a case in which the court regarded the question of whether a party "looked like a white woman" as a potentially different question of......

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